1999 PLP 1886 (MLD)

Pir Ijaz Ahmad Bodla for Petitioner. Rafaqat Ali, Naib, Tehsildar in person. Muhammad Rasheed detenu in custody. Vide order dated 7-9-1998, Law Officer was directed to produce the detenu if he is under the confinement of the respondent and consequently Muhammad Rasheed son of Atta Muhammad, the alleged detenu, has been produced in the Court.

2. It is contended by the learned counsel for the petitioner that detenu is alleged to have been detained as a result of proceedings under section 82 of the West Pakistan Land Revenue Act. He further contends that as per contention of Naib Tehsildar the detenu stood surety of the amount outstanding against defaulters namely Mst. Bushra Ijaz and others. He contends that action under section 82(8) of the West Pakistan Land Revenue Act could only be initiated if the original defaulter had been produced before the Revenue Officer and if the arrears were still unpaid by him. Admittedly defaulter in the instant case were never arrested as such question of initiation of any action under subsection (8) of section 82 of the West Pakistan Land Revenue Act does not arise. In support of his contention he has relied upon Muhammad Yar v. Tehsildar/Assistant Collector, lst Class. Pakistan (1991 PCr.LJ 363). He further contended that no step had been taken by the department in the form of issuing notice/summon upon the alleged surety, as such the action taken under sections 82 and 24 of the West Pakistan Land Revenue Act had rendered the detention of the alleged detenu to be without lawful authority and relied upon Raja Muhammad Ashraf v. Excise and Taxation Officer and others (1997 PCr.LJ 845-Lahore). He further contended that admittedly defaulters own property which has neither been attached nor any step has been taken for recovering the arrears of land revenue, but on the other hand the alleged detenu has been arrested who does not own any property whatsoever. He, thus, submits that the detention of the detenu is without any lawful authority and he be set at liberty.

3. Conversely it is stated by the Naib-Tehsildar that as the detenu stood surety for the payment of land revenue against the defaulters so he has been arrested under subsection (8) of section 82 of the West Pakistan Land Revenue Act.

4. A perusal of section 82(8) of the West Pakistan Land Revenue Act shows that action under subsection (8) can only be initiated if the requirement of subsection (3) of section 82 of West Pakistan Land Revenue Act have been fulfilled. According to section 82(3) of West Pakistan Land Revenue Act, when a defaulter is brought before the Revenue Officer, he may cause him to be taken before the Collector or may keep him under personal restraint for a period not exceeding 10 days and if the arrear is still unpaid cause him to be taken before the Collector. According to section 82(8) of West Pakistan Land Revenue Act, if any defaulter who under sub section (3) is being kept under personal restraint or under subsection (5) is being confined in civil jail shall be set at liberty if the arrears due from the defaulter are paid or on the defaulter's furnishing to the Revenue Officer ordering his arrest, or the Collector, security to the satisfaction of Revenue Officer or the Collector, as the case may be, for the payment of arrears due from him. Admittedly, in the instant case, defaulters were never arrested and brought before the Revenue Officer or Collector, hence, the question of taking action against the detenu under subsection (8) of section 82 of West Pakistan Land Revenue Act does not arise. This fact alone makes the detention of the present detenu as illegal and without lawful authority. Accordingly, petition is accepted and detenu is set at liberty.

5. Let a copy of this order be sent to the Director Anti-Corruption, Punjab, Lahore for proceeding against the delinquent officer/officials in accordance with law. N.H.Q./A.326/L Petition accepted.